Medical and Hospital Liability

Overview

Medical liability (responsabilite medicale) in Quebec has undergone significant evolution over recent decades. Although litigation against physicians increased for a period, the trend has since stabilized. Medicine is not an exact science: certain treatments and risks remain unknown. The Civil Code of Quebec (Code civil du Quebec, CCQ) frames the obligations of physicians and hospitals through a combination of general civil liability rules and profession-specific standards. The classification of the relationship between patient, physician, and hospital as contractual or extra-contractual (responsabilite civile extracontractuelle) remains a contested question with practical consequences for the burden of proof, the scope of damages, and vicarious liability. This lesson addresses the nature and intensity of the medical obligation, the physician's personal duties, the allocation of responsibility for the acts of others, and hospital liability in both its direct and vicarious forms.

Learning Objectives

• Distinguish the contractual and extra-contractual (legal) characterization of the patient-hospital and patient-physician relationships, and identify the consequences of each classification.
• Explain why the physician's obligation is generally one of means (obligation de moyens) rather than one of result, and identify the exceptions.
• Apply the presumptions of fault (faute) and causation (lien de causalite) recognized in medical liability litigation under art. 2849 CCQ.
• Identify the four principal duties of the physician: to diagnose, to inform, to treat, and to maintain confidentiality.
• Analyze the standard for informed consent (consentement eclaire), including the applicable tests for determining whether a failure to inform caused the patient's injury.
• Describe the conditions under which a physician may be held liable for the acts of auxiliaries under both the extra-contractual regime (art. 1463 CCQ) and the contractual regime.
• Evaluate the direct institutional liability of the hospital and its vicarious liability for the faults of employees and, in some circumstances, physicians.

Key Concepts and Definitions

• Extra-contractual liability (responsabilite civile extracontractuelle): the obligation to make reparation for injury caused outside a contractual relationship (art. 1457 CCQ).
• Contractual liability (responsabilite contractuelle): the obligation to make reparation for injury resulting from the non-performance of a contractual obligation (art. 1458 CCQ).
• Fault (faute): failure to meet the standard of conduct required by the circumstances, assessed objectively (art. 1457 CCQ).
• Obligation of means (obligation de moyens): the debtor undertakes to employ reasonable care and diligence, without guaranteeing the result.
• Obligation of result (obligation de resultat): the debtor undertakes to achieve a specific outcome; failure to achieve it raises a presumption of fault.
• Informed consent (consentement eclaire): a patient's authorization for treatment given after receiving adequate information about the nature, risks, and alternatives of the proposed intervention.
• Relationship of subordination (lien de preposition): the power of an employer (commettant) to direct and control the work of an employee (prepose), giving rise to vicarious liability under art. 1463 CCQ.
• Presumption of fact (presomption de fait): an inference drawn by the court from known facts to establish an unknown fact (art. 2849 CCQ).
• Professional secrecy (secret professionnel): the physician's duty to maintain the confidentiality of information obtained in the exercise of the profession.
• Reasonably prudent physician (medecin raisonnablement prudent et diligent): the abstract standard against which a physician's conduct is measured.

Nature of the Medical Obligation

Contractual or Extra-Contractual Character

The characterization of the patient-hospital and patient-physician relationship as contractual or extra-contractual has been one of the most persistent controversies in Quebec medical liability law. All commentators agree that the relationship is extra-contractual when the patient arrives unconscious or is incapable of providing valid consent. The disagreement concerns the able, conscious patient.

The contractual thesis. Following the decision in X c. Mellen, the Quebec Court of Appeal (Cour d'appel) held that a contract of professional care is formed as soon as a patient enters a physician's office. Proponents of this view argued that the meeting of wills between patient and physician gave rise to an innominate contract, valid under the conditions of art. 1385 CCQ: consent (consentement), capacity (capacite), cause, and object.

The extra-contractual (legal) thesis. Opposing scholars contended that healthcare relationships are so heavily regulated that institutions do not give genuine consent. The meeting of wills that forms the basis of a contract is absent because the establishment's participation is imposed by law.

The Camden-Bourgault decision. The Court of Appeal established three principles. First, the court held that the civil liability regime applicable to a hospital for the fault of a physician practising within it is legal, not contractual. Justice Rochon wrote that the contractual thesis would produce a contract concluded by a party (the hospital) that is not free to consent, bearing on subject matter reserved exclusively to the medical profession, and devoid of consideration for the hospital. Second, the court concluded that no relationship of subordination (lien de preposition) exists between the hospital and the physician in the performance of a medical act: the institution cannot answer for an act over which it exercises no control and whose performance the law entrusts exclusively to a physician. Third, the court held that, absent specific legislative provisions, there can be no liability without fault on the part of a hospital.

Persisting uncertainties. In Hopital de Chicoutimi c. Battikha, the Court of Appeal expressed the view, after emphasizing the necessity of a concrete analysis of hospital organization, that "a physician may sometimes become an employee (prepose) of the hospital," referring to the earlier decision in Martel c. Hotel-Dieu St-Vallier concerning an anaesthetist. The question of the physician as employee thus remains open in certain contexts.

The hospital continues to answer for the faults of other healthcare actors (nurses, residents, students) where a relationship of subordination is established. It also responds for its own "personal" faults, such as those arising from the organization of care and the maintenance of equipment.

The question of a hospital contract has not been definitively settled. In situations of deficient nursing care, accommodation services, equipment failure, or security problems, a contract between patient and hospital may still be formed. Contractual and extra-contractual relationships may coexist between the same parties, and the court must determine which regime applies to the specific facts.

The reclassification of the patient-hospital relationship as extra-contractual revived the problem of the momentary employer (commettant momentane). When a physician takes effective control over a hospital employee (a resident, for example), the relationship of subordination migrates, and the physician becomes the employer for the purposes of art. 1463 CCQ. The decision in Goupil c. Centre hospitalier universitaire de Quebec confirmed that the relationship between a pathologist and a patient with whom the pathologist had no direct contact was extra-contractual.

Intensity of the Obligation

Neither the physician nor the hospital is bound to guarantee the patient's recovery. The Code de deontologie des medecins prohibits a physician from guaranteeing a cure, whether expressly or impliedly. The physician must, however, employ all reasonable means to achieve the therapeutic objective. The obligation is therefore an obligation of means (obligation de moyens).

The standard of care. The physician's conduct is assessed not against the physician's own habitual practice, but against the abstract standard of the reasonably prudent, diligent, and competent physician placed in the same circumstances. The court compares the physician's acts and decisions with the recognized rules of the art (regles de l'art). The standard accounts for the state of medical knowledge at the relevant time, the specific circumstances, and the physician's degree of specialization. A cardiologist is judged against the standard of a prudent cardiologist. A decision has imposed a heightened standard on a leading specialist practising at a research hospital. Conversely, a general practitioner who performs acts within the domain of a specialist is judged against the specialist's standard.

Exceptional obligations of result. A physician who expressly undertakes to achieve a specific result transforms the obligation of means into an obligation of result. Where a statute fixes a strict deadline, the obligation is likewise one of result. The counting of sponges during surgery, normally assigned to nursing staff, constitutes an obligation of result. Organisms that transfuse contaminated blood have been held to violate an obligation of result in France, and the same reasoning has been applied in Quebec.

Presumptions of Fault and Causation

Direct proof of medical fault is often difficult. Courts have developed two types of presumptions under art. 2849 CCQ to assist victims.

Presumption of fault. The presumption may be invoked when two conditions are met. First, the victim must establish prima facie that the injury resulted from a medical intervention (a broad preliminary requirement of causation). Second, the victim must demonstrate, on a balance of probabilities, that an abnormal event occurred in the normal course of circumstances. Because the abnormal event should not have occurred, the court infers that the physician's conduct was at fault.

Rebuttal. Once the presumption is engaged, the physician is presumed to be at fault. The physician may rebut the presumption by proving that conduct met the standard of the reasonably prudent physician in the same circumstances. Some decisions have required the physician to establish the exact cause of the accident, but the better view holds that a physician bound only by an obligation of means should be able to free themselves by demonstrating compliance with the standard of care, without necessarily proving the precise cause.

Presumption of causation. Causation (lien de causalite) must be established on a balance of probabilities. Presumptions of fact under art. 2849 CCQ may also be used, though their application is not mandatory. Where a fault creating a specific danger is proven and that danger materializes, some decisions have inferred a causal link, although more recent case law has questioned this approach.

The application of presumptions in medical cases requires circumspection. Professor Jutras has observed that presumptions of fact rest on the premise that an event is anomalous, whereas medical science may classify the same event as an inherent risk.

Personal Liability of the Physician

The physician's duties are organized around four obligations: to diagnose, to inform, to treat, and to maintain confidentiality.

The Duty to Diagnose

A diagnosis (diagnostic) is the determination of the nature of a disease based on the patient's information, signs, symptoms, and laboratory results. Because a diagnosis is an opinion, it may prove incorrect. The physician is not liable for every erroneous diagnosis, but only for a diagnosis that falls below the standard of the reasonably prudent physician.

Required precautions. The physician must take reasonable steps and use adequate techniques to determine the patient's condition conscientiously. The following constitute faults: failing to consult the preliminary data file; omitting a preliminary examination; performing an incomplete or superficial examination; failing to order further investigations (such as imaging); producing a defamatory expert report or one that does not respect the rules of the art; and completing an insurance disability form containing inaccurate information that causes the patient's claim to be rejected.

Duty to refer. Where doubt exists, the physician must seek further information or refer the patient to a specialist. It has been held reasonable to wait for preliminary test results before consulting a specialist. If more advanced diagnostic tests existed only at an experimental stage, no fault can be attributed for failing to perform them. A test that had passed all stages of validation and was in recognized use, though not yet routine, has been held to be required.

Medical controversy. Courts do not arbitrate internal scientific controversies. Where a diagnostic error results from a genuine scientific disagreement, courts exercise extreme caution and will not find liability if the diagnosis corresponds to what a reasonably prudent physician would have reached. As Professors Bernardot and Kouri have stated: it is not for the jurist to reproach a physician for employing a method condemned by one segment of the medical profession but defended by another.

Contextual assessment. The analysis must be situated at the relevant time and account for the particular circumstances, including the information the patient provided. A diagnostic error is more readily excused in an emergency or when the condition is rare. The physician's degree of specialization also affects the standard. In one decision, the Superior Court (Cour superieure) declined to hold liable a general practitioner who diagnosed a sprain instead of a tendon rupture, noting that a specialist would likely have made the correct finding but that the general practitioner had proceeded correctly given the difficulty of the case.

Documentation. Imprecise notes in the medical file, failure to communicate a diagnosis to the patient, and concealment of a diagnostic error each constitute faults.

The Duty to Inform

The physician's obligation of information (obligation de renseignement) serves the principle of the inviolability of the person (inviolabilite de la personne). The physician must provide the patient (or a close relative, where the patient cannot express consent) with information sufficient to permit informed consent (consentement eclaire).

The Supreme Court framework. In Hopp c. Lepp, Justice Laskin held that the physician must answer the patient's questions about known risks and inform the patient of the nature of the proposed operation. The physician must disclose all material, particular, or unusual risks, but not every possible risk. The test for materiality is that of the reasonable person in the patient's position as known or as ought to be known to the physician.

In Reibl c. Hughes, the Supreme Court of Canada set the standard for causation in informed-consent claims. The court rejected a purely subjective test (what the particular patient would have decided) in favour of a modified objective test: whether a reasonable person, placed in the patient's situation, would have consented to the treatment had the risks been disclosed.

Application in Quebec civil law. The reception of these common-law decisions into Quebec civil law has been debated. Professor Louise Potvin approved the importation of the Supreme Court's parameters as a solution to a universal human problem. Professor Kouri, by contrast, argued that the Supreme Court's teachings should be set aside in civil-law matters, regarding both the content of the obligation and causation.

The prevailing view in Quebec doctrine holds that the content of the duty to inform is assessed by reference to the physician's conduct: the physician must disclose whatever a reasonably prudent and diligent physician would have communicated. The analysis focuses on the debtor of the obligation, not on the expectations of the creditor. Account must be taken of the particular circumstances, including urgency and the individual characteristics of the patient, given the intuitu personae nature of the relationship.

Causation for failure to inform. If the court finds no breach of the duty to inform, no analysis of causation is required. Where fault is established, the causal link between the failure and the injury must be proven. The dominant approach in Quebec combines subjective and objective elements: (1) would this patient have refused the treatment if properly informed? (2) is that claimed refusal consistent with the behaviour of a reasonably prudent person? The Court of Appeal has stated that the subjective inquiry must be complemented by an objective assessment to avoid constructing a scenario "entirely based on hypotheses."

The Court of Appeal has also recognized a presumption of fact in certain circumstances: where failure to inform is combined with proven disastrous consequences, the burden may shift to the physician to establish that the patient, if properly informed, would have consented anyway. This approach has not been universally adopted.

Content of the obligation. The physician must disclose: the physician's own lack of specialization where relevant; the utility of the intervention; its nature; normally foreseeable operative and post-operative risks; and available therapeutic alternatives. The more severe the risk (paralysis, death), the more the duty to disclose intensifies. Exceptional risks and risks inherent to all interventions need not be disclosed. For non-therapeutic procedures (cosmetic surgery, for example), the duty extends to rarer complications. Where care is not required by the patient's state of health, written consent must be obtained (art. 24 CCQ), though absence of writing is not fatal if the patient demonstrably knew the risks.

Identity of the operator. If a major portion of the intervention is to be performed by an assistant, the patient must be informed. Acceptance of treatment in a teaching hospital implies consent to the presence of other practitioners under the supervision of the treating physician. In Marcoux c. Bouchard, the Court of Appeal held that the physician's identity is a fundamental element of valid consent. On appeal, the Supreme Court of Canada affirmed the patient's right to know the identity of the principal actors but not of customary surgical auxiliaries such as anaesthetists, nurses, or residents.

Continuing nature. The obligation to inform and to obtain consent are continuous. If unforeseen circumstances arise during an intervention, the physician must obtain renewed consent unless delay would create greater danger, as in an emergency (art. 13 CCQ). The same principle requires the physician to stop treatment if the patient withdraws consent.

Consent forms. A signed consent form creates evidence of consent, but courts prefer to scrutinize the factual context, particularly where the form was signed before the physician's explanation. A patient who failed to read the form may also bear some responsibility.

Therapeutic privilege. In limited circumstances, the physician may withhold certain information: where the patient explicitly refuses to be informed, or where the physician has just cause not to disclose.

The Duty to Treat

The physician must administer treatment in accordance with the rules of the art and provide care that is conscientious, attentive, and timely. The physician must remain alert to the patient's reactions and reconsider an uncritical acceptance of a colleague's diagnosis.

Standard of care. The physician is protected from liability when using a treatment recognized at the time and in current use, provided the practice is itself reasonable. The physician must keep knowledge current and may not resort to an unusual method without having adequately informed the patient of its utility and risks. A physician who does not possess the required competence must refer the patient to another, as required by art. 42 of the Code de deontologie des medecins. Where a general practitioner performs treatment within the domain of a specialist while a specialist is available, the general practitioner's conduct is judged by the specialist's standard.

Medical controversy. The Court of Appeal has reaffirmed that courts do not arbitrate medical debates. Where two recognized schools of thought exist regarding a treatment, a physician who selects one approach over the other does not commit a fault, provided the chosen approach is considered reasonable.

Post-treatment obligations. The duty to treat includes prescribing adequate medication, informing the patient of post-operative risks, and providing reasonable follow-up. An absent physician must ensure continuity of care through a competent replacement. The patient, in turn, has a duty of cooperation and must contact the physician when observing abnormal symptoms. Where test results require follow-up, a patient who has been clearly instructed to make an appointment may be held at fault for failing to do so.

The Duty of Confidentiality

The physician is bound by professional secrecy (secret professionnel). The Code de deontologie des medecins requires the physician to keep confidential all information obtained in the exercise of the profession and to refrain from indiscreet conversations about a patient. The duty extends to not revealing that a specific person has sought the physician's services. The physician must also take reasonable measures to ensure that employees respect confidentiality, a principle reinforced by the Charter of Human Rights and Freedoms (Charte des droits et libertes de la personne).

Legal framework. The physician is contractually responsible for breaches of confidentiality by support staff, unless superior force (force majeure, art. 1470 CCQ) is established. The court may, of its own motion, declare evidence inadmissible if it violates the patient-physician confidentiality rules (art. 2858 para. 2 CCQ). Confidentiality protects the patient's right to privacy (arts. 9 to 12 CCQ), strengthens the physician-patient relationship, and upholds the dignity of the profession.

Exceptions. The physician may disclose information when: the patient authorizes disclosure; a statute requires it (for instance, mandatory reporting of certain communicable diseases); a compelling and just reason relates to the health or safety of the patient or others; or the patient institutes proceedings against the physician, which implies a tacit waiver of the right to confidentiality for relevant information. The Supreme Court of Canada extended this principle to insurance contracts, holding that the waiver may be deemed to occur at the formation of the contract.

In Droit professionnel - 1 208, a psychologist who disclosed the content of a report without authorization was held to have committed a fault, resulting in $10,000 in moral damages, $5,000 in punitive damages, and partial costs.

Liability of the Physician for the Acts of Others

The increasing specialization of medicine and the formation of medical teams have multiplied the number of persons involved in a patient's care. Nurses, residents, students, technicians, and other physicians all participate. The question whether a fault by one of these auxiliaries can engage the liability of the treating physician depends on the applicable regime.

The Extra-Contractual Regime

Under the hypothesis that the physician-patient relationship is extra-contractual, the physician's liability for the fault of an auxiliary requires three conditions (art. 1463 CCQ): a relationship of subordination (lien de preposition), a fault by the employee (prepose), and commission of that fault within the exercise of functions.

Relationship of subordination. The link requires a specific power of control, supervision, and direction. Nurses, students, and residents are generally considered employees. Identifying the employer (commettant) at the precise moment of the fault may be difficult. The hospital is often the employer, but evidence may show that a particular auxiliary was under the specific control of the physician, who then becomes the momentary employer for that act. Doctrinal opinion holds that a resident is the employee of the supervising physician when performing a medical act, and of the hospital when the faulty act relates to hospital care.

A physician, especially a specialist, cannot be considered the employee of another physician, because no power of specific control exists between them.

Exercise of functions. The test considers whether the employer derived a benefit from the acts that caused the injury. Where any benefit to the employer exists, even concurrently with a benefit to the employee, the employee is considered to have acted within the exercise of functions. Where the functions merely provided the occasion for the injury, the employer is not liable.

The Contractual Regime

Under the hypothesis of a contractual physician-patient relationship, the principle qui facit per alium facit per se (one who acts through another acts through oneself) applies. A debtor who entrusts the performance of an obligation to another remains personally responsible. The contractual regime does not require the plaintiff to prove a relationship of subordination. The treating physician is responsible for the fault of anyone who substitutes for or assists the physician in the performance of the contractual obligation, regardless of the legal relationship between them.

Replacement physicians. When a physician must be absent, the physician is required to entrust care to a competent replacement. Two contracts then coexist: the original contract between the patient and the treating physician, and a new contract between the patient and the replacement. The replacing physician's fault engages the replaced physician's contractual liability, even if the replaced physician committed no personal fault. The replaced physician must notify the patient and choose a reasonably competent replacement; failure to do so constitutes a personal fault. In Bergstrom c. G., a treating physician was held personally liable for failing to respond promptly to the patient's worsening condition, but the principle extends beyond personal fault.

Medical teams. One decision (Kritikos c. Laskaris et al.) held the treating physician liable for the fault of the anaesthetist, reasoning that the surgeon, as head of the medical team, could not disregard the acts of colleagues. This position has been questioned in favour of an "egalitarian conception of the medical team." In Crawford c. Centre hospitalier de l'Universite de Sherbrooke, the court held that a surgeon is entitled to rely on the competence and diligence of the anaesthetist. The Court of Appeal has also criticized the characterization of the surgeon as "emperor of the operating room." The contractual liability of the physician for the acts of other physicians on the medical team has therefore receded.

Hospital Liability

Direct Institutional Liability

The hospital may be liable not for the faults of others but for the consequences of its own administrative decisions. These direct faults arise where the hospital's organizational choices cause injury to patients.

Non-medical services. The hospital must house patients in safe conditions. This obligation, analogous to that of a hotel operator, includes providing appropriate premises, adequate equipment, and ancillary services. Security measures must correspond to ordinary prudence. In Bacon c. Hopital du St-Sacrement, a patient fell from a third-floor window; the hospital was not held liable because it had taken the measures that ordinary prudence required. Direct liability may also arise from food poisoning, from the deposit of the patient's belongings, or from allowing a dangerous situation to persist.

Medical services. The hospital bears the same obligations as the physician regarding medical services. It must provide attentive and conscientious care. The responsibility for ensuring the safety of suicidal patients is assessed according to the treatment prescribed by the physician. Staffing shortages may engage institutional liability. In Cote c. Hopital l'Hotel-Dieu de Quebec, the court held the hospital liable because it had imposed an excessive workload on the anaesthetist, who was covering three operating rooms simultaneously, resulting in a spinal artery thrombosis and permanent lower-limb paralysis.

The hospital is also a debtor of obligations of information, confidentiality, and diagnosis, on the same basis as physicians.

Hospital Liability for the Acts of Others

Extra-contractual liability. Under art. 1463 CCQ, the hospital is responsible for the faults of its employees committed within the exercise of their functions. Nurses, students, residents, and radiology technologists are generally recognized as employees. The determination of who was the employer at the moment of the faulty act is a factual inquiry. In Hopital general de la region de l'Amiante Inc. c. Perron, the Court of Appeal held that nurses are generally employees of the hospital, but that a fault committed under the immediate direction and control of a physician engages the physician's liability, not the hospital's.

The traditional position, endorsed by the Camden-Bourgault decision, holds that a physician is not an employee of the hospital, because the hospital exercises no specific control over medical acts. However, some scholars have argued that increasing regulation of physicians through appointment procedures, practice evaluations, and statutory requirements creates a form of control sufficient to establish a relationship of subordination. A legislative reform of the Act respecting health services and social services (Loi sur les services de sante et les services sociaux) may support the argument that the hospital bears a personal obligation to provide care, engaging liability on the principle qui agit per alium, agit per se, without requiring proof of a relationship of subordination.

Contractual liability. Under the contractual thesis, the hospital may be held liable for the faults of all personnel, including physicians, without proof of a relationship of subordination. In Lapointe c. Hopital Le Gardeur, the Court of Appeal held that the hospital's obligation at the emergency department encompassed the provision of competent care in all domains. The hospital was liable for the physician's faults as part of the service to which it had committed. Where the patient presents directly at the hospital, the hospital contract is "global," and the institution is responsible for all aspects of care. Where the patient first sees a physician and is then admitted, a medical contract and a hospital contract coexist, and the court must determine which obligations fall within each contract.

Practice Checklist

Nature of the obligation

• Determine whether the patient-physician relationship is contractual or extra-contractual based on the factual circumstances (conscious admission, referral, emergency).
• Identify whether the obligation at issue is one of means or one of result.

Diagnosis

• Verify that the physician took reasonable precautions and used adequate diagnostic techniques.
• Confirm whether the physician consulted the medical file, performed a preliminary examination, and ordered further investigations where indicated.
• Assess the diagnosis against the standard of the reasonably prudent physician with the same degree of specialization and in the same circumstances.

Informed consent

• Confirm that the physician disclosed the nature, utility, material risks, and available alternatives of the proposed treatment.
• Verify whether consent was continuous and whether renewed consent was obtained for unforeseen developments.
• Analyze causation using the modified objective test: would a reasonable person in the patient's situation have refused the treatment had the risks been disclosed?

Treatment

• Assess the treatment against the rules of the art and the standard of the reasonably prudent physician.
• Verify that the physician did not exceed the scope of competence; confirm referral to a specialist where indicated.
• Confirm adequate follow-up and continuity of care, including arrangements for replacement during absences.

Confidentiality

• Identify any unauthorized disclosure of medical information and assess whether an exception (patient authorization, statutory obligation, compelling safety reason) applies.

Physician's vicarious liability

• Determine whether the relevant regime is contractual or extra-contractual.
• Under the extra-contractual regime, establish the relationship of subordination, the fault of the employee, and the exercise of functions.
• Under the contractual regime, identify whether the auxiliary was substituted or assisting in the performance of the physician's contractual obligation.

Hospital liability

• Assess direct institutional faults: organization of care, staffing, equipment, safety, and accommodation.
• Determine the hospital's vicarious liability: identify the employer at the moment of the faulty act.
• Consider the potential coexistence of contractual and extra-contractual obligations between the patient and the hospital.

Glossary

• Contractual liability (responsabilite contractuelle): the obligation to make reparation for injury caused by the non-performance of a contractual obligation (art. 1458 CCQ).
• Employer / master (commettant): the person exercising a power of direction and control over an employee, giving rise to vicarious liability (art. 1463 CCQ).
• Employee (prepose): a subordinate whose fault may engage the liability of the employer (art. 1463 CCQ).
• Extra-contractual liability (responsabilite civile extracontractuelle): the obligation to make reparation for injury caused outside a contractual relationship (art. 1457 CCQ).
• Fault (faute): failure to meet the standard of conduct required by the circumstances (art. 1457 CCQ).
• Informed consent (consentement eclaire): the patient's authorization for medical treatment, given after disclosure of the nature, risks, and alternatives of the intervention.
• Inviolability of the person (inviolabilite de la personne): the fundamental principle that a person's body may not be interfered with without free and informed consent.
• Momentary employer (commettant momentane): the person who exercises effective control over an employee at a specific moment, potentially displacing the usual employer's liability.
• Obligation of means (obligation de moyens): an undertaking to use reasonable care and diligence, without guaranteeing a specific outcome.
• Obligation of result (obligation de resultat): an undertaking to achieve a specific outcome; failure raises a presumption of fault.
• Presumption of fact (presomption de fait): an inference from known facts to establish an unknown fact (art. 2849 CCQ).
• Professional secrecy (secret professionnel): the physician's duty to maintain confidentiality of information obtained in the exercise of the profession.
• Reasonably prudent physician (medecin raisonnablement prudent et diligent): the abstract standard of care against which a physician's conduct is measured.
• Relationship of subordination (lien de preposition): the power of an employer to direct and control work, giving rise to vicarious liability under art. 1463 CCQ.
• Rules of the art (regles de l'art): the body of recognized professional standards against which a physician's acts are measured.
• Superior force (force majeure): an external, irresistible, and unforeseeable event defeating liability (art. 1470 CCQ).

References and Further Reading

• Civil Code of Quebec: arts. 9 to 12, 13, 14, 24, 1385, 1457, 1458, 1463, 1470, 1474, 2849, 2858.
• Code de deontologie des medecins: art. 42 and provisions regarding the prohibition of guaranteeing a cure, confidentiality, and continuing education.
• Act respecting health services and social services (Loi sur les services de sante et les services sociaux).
• Charter of Human Rights and Freedoms (Charte des droits et libertes de la personne).
• Selected case law: X c. Mellen; Lapointe c. Hopital Le Gardeur; Camden-Bourgault; Hopital de Chicoutimi c. Battikha; Martel c. Hotel-Dieu St-Vallier; Hopital Notre-Dame de l'Esperance c. Laurent; Goupil c. Centre hospitalier universitaire de Quebec; Hopp c. Lepp; Reibl c. Hughes; Marcoux c. Bouchard; Bergstrom c. G.; Kritikos c. Laskaris et al.; Crawford c. Centre hospitalier de l'Universite de Sherbrooke; Bacon c. Hopital du St-Sacrement; Cote c. Hopital l'Hotel-Dieu de Quebec; Hopital general de la region de l'Amiante Inc. c. Perron; Labrecque c. Hopital St-Sacrement; Houle c. Cote; Hamelin-Hankins c. Papillon; Droit professionnel - 1 208.
• Doctrine: Bernardot and Kouri; Kouri and Philips-Nootens; Deschamps, Pierre; Potvin, Louise; Jutras; Nadeau; Toth.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. Quebec civil law may evolve through legislation and judicial interpretation. For advice on a specific situation, consult a qualified Quebec lawyer or notary.